The following Op-ed was published on 5 October 2011 on Al-Jazeera.
Calling for negotiations instead of statehood for Palestine "holds justice hostage to the political will of Israel".
Some governments have objected to the Palestinian leadership’s bid to upgrade Palestine’s status at the UN on the basis that only negotiations with Israel can bring peace. For a long time, some governments have supported negotiations at all costs, even if doing so meant denying justice to victims of violations of international law, including the most egregious international crimes.
This perpetuation of the politics of the "negotiating table" holds justice hostage to the political will of the Israeli government, obstructing recourse to justice for Palestinian victims. They have willfully ignored the basic principle that preventing future crimes and promoting human dignity are essential preconditions for a durable peace. Governments that claim to support accountability and the rule of law should be held to account for their support of such actions.
In parallel to applying for UN membership, the Palestinian leadership may also ask the General Assembly to invite Palestine to become a member of other international organisations. Palestine could then seek to join the International Criminal Court (ICC).
Yet the EU and a number of its member states are reportedly trying to condition such a General Assembly resolution on a Palestinian promise not to turn to the ICC. Along with discrediting the Court and its authority, such tactics threaten to thwart a much-needed monumental opportunity for justice and accountability.
They also send the dangerous message that Israel is, and should remain, above the law - reaffirming the current climate of impunity for Israel’s international crimes, in stark defiance of the UN’s extensive documentation of crimes committed during Israel’s "Operation Cast Lead" in the Gaza Strip, and the principle of equal access to justice by all parties to the conflict.
Such action would directly contravene the EU’s common position on the ICC, which calls on all EU countries to support the Court’s work and recalls the importance of its contribution to "freedom, security, justice and the rule of law as well [as] … the preservation of peace and the strengthening of international security".
These attempts to bar access to justice have already damaged the authority and credibility of the EU and its agenda for human rights and democracy across the Euro-Mediterranean region, by proving its double standard in enforcing these obligations on the governments with which they conduct relations. It is the responsibility of the EU and its individual member states to send the clear and unambiguous message that accountability for crimes under international law will be pursued, irrespective of any political considerations.
What can be said for the state of international justice when law-abiding states themselves are not only unwilling to prevent Israel’s international crimes, but also actively support Israel’s continued impunity? If the EU and its member states do not reject the call for negotiations at the expense of justice, who can be expected to defend the normative foundations of the just and peaceful world order that states and international organisations like the UN exist to promote?
Since 1967 there have been numerous processes and initiatives meant to facilitate negotiations between Israel and the Palestinian representatives with the intention to bring about peace. These actions have sidelined initiatives for international justice, resulting in the exacerbation of the situation of the Palestinian population through the perpetuation of Israel’s violations of international law in a state of impunity. Moreover, the PLO-Israel Interim Agreements 1995 (Oslo Accords) have been misused to perpetuate measures that violate the very basic pillars of international law, contrary to their avowed objective as an interim step on the path to a durable peace.
Negotiations on final status issues, including borders and refugees, cannot be resolved before the occupation is brought to an end, with the end of hostilities and the effective withdrawal of all troops as well as the cessation of all violations of international law, including the withdrawal of all settlements. International law and a rights-based approach must stand at the core of any just and durable resolution of the conflict.
International law prohibits the acquisition of territory by force. In other words, the long-standing "land swaps" initiative proposed by the Israeli government with support from the EU and the US is therefore strictly proscribed by international law. Despite this, the Quartet’s statement (a diplomatic initiative consisting of the UN, US, EU and Russia) issued on September 23 claims that negotiations should continue on issues of territory, including "land swaps".
The Palestinian leadership should take all necessary measures to ensure that the rights of the Palestinian people are protected to the fullest extent, through the promotion of the exercise of the right to self-determination by all the Palestinian people, including the right of return, and their sovereignty over natural resources.
Concurrently, the international community, and in particular the EU, should adhere to its obligations towards the Palestinian people and their situation as well as the obligations flowing from Israel’s persistent violations of international law by ensuring that Palestine’s application for UN membership goes through. The Palestinian UN bid, which is meant to facilitate access to international accountability mechanisms such as the ICC, must not be derailed by the political pressures of some states to return to negotiations, denying justice to victims and shielding perpetrators from international accountability.
Shawan Jabarin is General Director of Al-Haq, an independent Palestinian non-governmental human rights organisation based in Ramallah, in the occupied West Bank. Established in 1979, the organisation has special consultative status with the United Nations Economic and Social Council.
The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.